in the US, a hitherto unknown right to an abortion was discovered by the supreme court in 1973: it was described as "an emanation from a penumbra" and was an example of the justices inventing law to arrive at the outcome they desired rather than deciding the outcome based on existing law.
Prior to that, the individual states decided for themselves
In the unlikely event of roe being overturned, the issue would revert to the states which seems a fair compromise.

What you're all forgetting is that conservative judges respect precedent as well as the constitution

When Trump asks his puppets on the Supreme Court to jump, the only question will be how high? He has pretty much said so himself, especially in the case of abortion.

in the US, a hitherto unknown right to an abortion was discovered by the supreme court in 1973: it was described as "an emanation from a penumbra" and was an example of the justices inventing law to arrive at the outcome they desired rather than deciding the outcome based on existing law.
Prior to that, the individual states decided for themselves
In the unlikely event of roe being overturned, the issue would revert to the states which seems a fair compromise.

What you're all forgetting is that conservative judges respect precedent as well as the constitution

When Trump asks his puppets on the Supreme Court to jump, the only question will be how high? He has pretty much said so himself, especially in the case of abortion.

During the beginning of the third presidential debate, Trump came out hard against abortion. He affirmed that, if elected, he would appoint only pro-life justices to the Supreme Court and that Roe v. Wade would be “automatically” overturned. https://newrepublic.com/minutes/137950/ ... omatically

I agree with ppauper that Roe v. Wade is unlikely to be overturned. In his confirmation hearing testimony Kavanaugh repeatedly called the combo of Roe andPlanned Parenthood v. Casey "precedent-on-precedent". Admittedly, this is not definitive signalling. Nevertheless, I suspect Trump is going to be disappointed in Kavanaugh on this issue. As I support Roe, I'm glad.

What I don't understand about conservatives complaining about the Supreme Court finding non-existent rights in Roe is, why don't they apply the same complaint to Brown v. Board of Education? The answer, of course, is that almost all would be rightly embarrassed to argue for a return to states rights' based school segregation.

Does the Supreme Court sometimes effectively make new law? Yes, they do -- let's get over it.

While I think we are, broadly speaking, on the same side of this argument, I have two counterpoints. First, if the hearings and associated email releases have demonstrated anything, it would be that Kavanaugh has a history of lying through his teeth, even under oath. Second, I have absolutely no doubt that a large majority of Trump supporters, and many of his cabinet officers - starting with Betsy DeVos, would be quite happy to return to a system of schools (officially) segregated by race.

While I think we are, broadly speaking, on the same side of this argument, I have two counterpoints. First, if the hearings and associated email releases have demonstrated anything, it would be that Kavanaugh has a history of lying through his teeth, even under oath. Second, I have absolutely no doubt that a large majority of Trump supporters, and many of his cabinet officers - starting with Betsy DeVos, would be quite happy to return to a system of schools (officially) segregated by race.

Yes, we likely agree on Roe.

However, on your last counterpoint, likely not.

While not a Trump voter, I don't believe 25-50% of the US voting public is racist (i.e., a large majority of those who voted for him). Instead, as a liberal-not-leftist, I side with many conservatives on that one, as argued in this 5 mins from PragerU:

I think many of us would distinguish between desegregation and forced integration

de jure segregation is wrong, but what about de facto segregation?

Green v New Kent County, 1968

In New Kent County in rural Virginia, black and white students had been given a choice as to which of two schools they wished to attend. Some 155 black students chose to transfer to the (previously) all-white elementary and high school. No whites chose to attend the black school. This may be freedom of choice, the Court ruled, but the results were intolerable. Both schools would now be integrated.

forced busing was the "solution"

fast forward 40 years

Finally, in 2007, the Roberts Court produced a contentious 5–4 ruling in Parents Involved in Community Schools v. Seattle School District No. 1 (PICS). The decision prohibited the use of racial classifications in student assignment plans to maintain racial balance. Whereas the Brown case ruled that racial segregation violated the Constitution, now the use of racial classifications violated the equal protection clause of the 14th Amendment. However, Justice Kennedy's concurrence did hold that “avoiding racial isolation” and addressing “the problem of de facto resegregation in schooling” remain compelling state interests which can be addressed by narrowly tailored programs. Writing for the minority, Justice Breyer said the "ruling contradicted previous decisions upholding race-conscious pupil assignments and would hamper local school boards' efforts to prevent 'resegregation' in individual schools".

The Supreme Court in [I[Brown[/I] reached the right result but applied the wrong analysis. Rather than flatly rejecting Plessy's faulty reasoning as a Fourteenth Amendment equal protection violation, the Court opened a Pandora's box of judicial activism moored in sociology and psycho-analysis.

Plessy was a 19th century case about a louisiana law requiring separate railroad cars for whites and non-whites, and again the justices twisted the Constitution to arrive at the result they wanted.
The problem a lot of people have with Brown is the faulty logic in the opinion. As you say, the Court invented constitutional rights. If they'd just said that Plessy was wrongly decided, that would have been fine.

The Supreme Court in [I[Brown[/I] reached the right result but applied the wrong analysis. Rather than flatly rejecting Plessy's faulty reasoning as a Fourteenth Amendment equal protection violation, the Court opened a Pandora's box of judicial activism moored in sociology and psycho-analysis.

Plessy was a 19th century case about a louisiana law requiring separate railroad cars for whites and non-whites, and again the justices twisted the Constitution to arrive at the result they wanted.
The problem a lot of people have with Brown is the faulty logic in the opinion. As you say, the Court invented constitutional rights. If they'd just said that Plessy was wrongly decided, that would have been fine.

You should mention your sources, but I was able to track it down (Mark Levin).

In any event, I think this supports my point that both conservatives and liberals are more "outcome based" on Supreme Court decisions than they care to admit. Conservatives who don't like Roe say there is nothing about abortion rights in the Constitution. If they do like Brown, like Mark Levin and you, they say there is nothing about segregation rights in the Constitution and contrary precedents were wrong to find such rights. Liberals are more likely to find various rights. But, in the end, it is the outcome that really matters to both sides -- and there is always some legal argument to dress it up.

Fine. Separation of powers has always been an ideal often violated in practice --- some issues are just so contentious that we need the Court to make the law. Hopefully, if it's good law, it tends to last.

Last edited by Alan on September 10th, 2018, 3:22 pm, edited 1 time in total.